07/12/09 RAP/RCha/RO/I (2009) REVISED EUROPEAN SOCIAL CHARTER 9th National Report on the implementation of the European Social Charter (revised) submitted by THE GOVERNMENT OF ROMANIA (Articles 2, 4, 5, 6, 21, 22, 26, 28 and 29 for the period 01/01/2005 – 31/12/2008) __________ Report registered by the Secretariat on 30 November 2009 CYCLE 2010 Article 2 – Right to just conditions of work Legal framework o Law no. 53/2003 on the Labour Code o Order 870/2004 on approving the Regulation on working time, the organization and on-call service in public units in the health sector o Law no. 19/2000 on the public system of pensions and other social insurance rights o Law no. 319/2006 on health and safety at work o Government Decision no. 1425/2006 approving the rules for the application of Law no. 319/2006 on health and safety at work o Order no. 64/2003 of Minister of Labour and Social Solidarity, with amendments approved by Order no. 76/2003 o Government Decision no. 355/2007 on the supervision of workers’ health o 2007-2010 Single Collective Labour Agreement at national level Paragraph 1 – Reasonable daily and weekly working hours In its previous conclusion the Committee wished to be informed about the rules, statutory or otherwise regulating on-call work. In particular it wished to know whether time spent at the workplace inreadiness for work is regarded as working time. In this connection the Committee notes that the report does not provide a reply. The Committee notes that If the necessary information is not provided in the next report, there will be nothing to show that the situation in Romania is in compliance with Article 2§1 of the Revised Charter. According to Art. 111 par.(1) of Law no. 53/2003 on the Labour Code, the maximum legal working time may not exceed 48 hours per week, including overtime. Par.(2) of the same article provides that when work is carried out in shifts, the working time may be extended beyond 8 hours per day and 48 hours per week, provided that the average working hours, calculated over a period of maximum 3 weeks, should not exceed 8 hours per day or 48 hours per week. According to the legal provisions in force the working time is defined as: ¾ Labour Code (Law no. 53/2003) in its Article 108 – “The working time is any period during which the employee performs the work, is available to the employer and fulfils his/her tasks, according to the provisions of the individual employment contract, the applicable collective labour agreement and/or the legislation in force.” (www.codulmuncii.ro/en) ¾ Order of the Minister of Labour and Social Solidarity no. 870/2004, Article 1 – “The working time is the time the employee uses to fulfil his/her work tasks.” The Single Collective Labour Agreement at national level for 2007-2010 lays down, in its Article 18, that “normal working time duration does not include time used for clothing – unclothing at the beginning and end of the work schedule”. www.legislatiamuncii.ro/Contractul-colectiv-de-munca.html Work “on-call” may be interpreted as the overtime performed by the employees, upon the employer’s request, over the normal working time. 2 According to Article 117 (2) of the Labour Code, “the overtime work may not be performed without the agreement of the employee, except for acts of force majeure or urgent works intended to prevent or to eliminate the consequences of an accident”. The provisions of Article 119 (1) and (2), Article 120 (1 and 2) and Article 121 of the Labour Code establish that “overtime shall be compensated by paid hours off in the next 30 days after its performance. Under these circumstances, the employee shall enjoy the wage corresponding to the hours performed above the normal work schedule. If the compensation by paid hours off is not possible in the terms set in Article 119 (1) in the following month, the overtime shall be paid to the employee by adding an extra pay according to its duration. The extra pay for overtime, as provided under the conditions provided for in paragraph (1), shall be established by negotiation, within the collective labour agreement or, as the case may be, within the individual employment contract, and shall not be lower than 75% of the basic pay. Example: the rule is that, whenever a worker performs 2 hours over the normal work schedule, the 2 overtime hours should be at first compensated with 2 hours off, payable during the next 30 days after its performance. When it is not possible to compensate for the 2 hours worked overtime during the next 30 days, the worker shall receive an extra pay which, according to the provisions of the Single Collective Labour Agreement at national level for 2007-2010, and particularly to Article 41 (3) (c), is 100% of the basic pay. Article 121 of the Labour Code establishes that “young people under the age of eighteen years may not perform overtime work.” Paragraph 2 – Public holidays with pay The Committee also noted previously that the provisions of the relevant legislation on public holidays do not apply to workplaces requiring continuous activity. The Committee asks how workers engaged in such activity are granted time off in lieu or receive increased remuneration. The Committee asks for further confirmation that most employees required to work on a public holiday receive an increase of more than 100 %. According to art. 134 par.(1) of Law no. 53/2003 on the Labour Code, with amendments and completions, the holidays that are not working days are as follows: - 1st and 2nd January; - First and second day of Easter; - 1st May; - 1st and 2nd days of Pentecost; - St. Mary’s Day (15th August); - 1st December; - 1st and 2nd days of Christmas; - 2 days for each of the 3 annual religious holidays, declared as such by legal religions other than Christian, for persons belonging to them. According to Art. 135 on the Labour Code, by Government Decisions there will determined appropriate working schedules for the health and food supply units, in order to ensure the necessary healthcare and respectively the supply with food necessities for the population, whose application is required. 3 According to Art. 136 of Law no. 53/2003 on the Labour Code, the provisions set in Art. 134 do not apply in workplaces where the activity cannot be interrupted because of the production process, or to the specific activity. According to Art. 137 par.(1) and (2) of the same act, employees working in establishments referred to in Art. 135, as well as the jobs provided in Art. 136 are provided with appropriate compensation by time off in the next 30 days. If, on duly justified grounds, no days off are granted, the employees shall benefit, for the activity performed during the public holidays, from an extra pay added to the basic pay, which may not be lower than 100% of the basic pay corresponding to the activity performed within the normal work schedule. Example: the rule is that, when a worker has performed a normal work schedule (8 hours) on the 1st of January, this day is first of all compensated by 8 hours off payable during the next 30 days after having been performed. When it is not possible to compensate for the 8 hours worked on the public holiday in the next 30 days, the worker shall receive an extra pay which, according to the provisions of the Single National Collective Labour Agreement for 2007-2010, and mainly its Article 41 (3) (c), is of 100% from the basic pay. Paragraph 4 – Elimination of risks for workers in dangerous or unhealthy Occupations The Committee asked that the list of occupations activities in which working time has been reduced to less than eight hours daily be included in the next report. Furthermore, having noted that additional paid holidays (at least three days per year) for workers engaged in work under special conditions are provided by collective agreement, the Committee wished to receive a more detailed overview of the agreement provisions concerned. The Single Collective Labour Agreement at national level for 2007-2010 provides for the reduction of the normal working time and for the categories of personnel that benefit from that schedule. Following the inspection visits conducted by the labour inspectors at the local level, the activities where employees benefited from a reduced length of working time of less than 8 hours, as stipulated in the Collective Labour Agreements concluded at the groups of enterprises level and/or enterprises level are as follows: - social work and health - doctors, physicians, Laboratory assistants, nurses and high-school graduate health care personnel, blood transfusion personnel, radiology personnel; - metallurgy industry – founder, coke worker, locksmith, chamotte mason, crane operator, rolling bridge mechanic, forger, charge preparing worker, purifying worker, metallurgist; - road transport – car driver; - extraction and processing of coal – miner, miner helper, locksmith, pyrotechnist, well signaller, equipment mechanic, compressor worker; - industry of machines and equipments - rolling bridge mechanic; - other transport-related activities – flight controller; - production and distribution of electric and thermo-power, gas and hot water – electrician; - manufacture of chemicals and chemical products – chemist operator, Laboratory assistant, maintenance mechanic; - manufacture of cellulose, paper and paperboard – boiling worker, cellulose washing worker, vessels equipment operator, maintenance personnel; 4 - post and telecommunications – junction operator, telephone exchange operator; - manufacture of glass products – glass blower, glass mixture